Peters v. Johnson

• Decision Date: 01 March 1902
• Citation: 50 W.Va. 644,41 S.E. 190
• Parties: PETERS v. JOHNSON et al.
• Court: West Virginia Supreme Court

41 S.E. 190

50 W.Va. 644

PETERS

v.JOHNSON et al.

Supreme Court of Appeals of West Virginia.

March 1, 1902.

TRESPASS ON THE CASE—FORM OF VERDICT— RULE FOR ENTRY OF DAMAGES—ISSUABLE PLEA—EFFECT—DAMAGES FOR TORT—EXECUTION OF DANGEROUS CONTRACT—PERSONS ENTITLED—POISONOUS DRUGS—CARE IN DISPENSING.

1. A verdict in an action of trespass on the case reading, "We, the jury, find for the defendants" (the plea being not guilty), is good.

2. Though, in an action sounding in damages, there is an order at rules for an entry of damages, yet a plea of the general issue, or other issuable plea, filed in term, annuls that order; and the jury is properly sworn to try the issue, and not to inquire of damages.

3. The general rule is that damages for which a party is liable in tort are such, and only such, as are the reasonable and probable consequence of his acts.

4. Only the parties to a contract can sue for damage from its breach; but where, in executing it, things of imminently dangerous character are used, from which injury may probably happen to others, the law places him who executes the contract under duty to so perform it as not injure strangers to it, and such strangers may sue for damage coming to them from its negligent performance.

5. Apothecaries, druggists, and all persons engaged in manufacturing, compounding, or selling drugs, poisons, or medicines, are required to be extraordinarily skillful, and to use the highest degree of care known to practical men to prevent injury from the use of such articles and compounds.

6. Where a merchant sells a poisonous drug to one person, for a medicine which is harmless, by mistake, and it is taken for medicine, without negligence, by a third person, the seller is 'liable to such third person for damage resulting to him therefrom, notwithstanding there is no privity of contract between the merchant and such third person, ¹

(Syllabus by the Court.)

Error from circuit court, Ritchie county; G. W. Farr, Judge.

Trespass on the case by L. J. Peters against Johnson, Jackson & Co. From a Judgment for defendants, plaintiff brings error. Reversed.

Sherman Robinson, for plaintiff in error.

P. W. Morris, B. F. Ayers. and Homer Adams, for defendants in error.

BRANNON, J. This is an action of trespass on the case, brought in the circuit court of Ritchie county by L. J. Peters against the firm of Johnson, Jackson & Co. The declaration alleges that the defendants sold to the plaintiff, through his agent, by mistake, saltpeter, for epsom salts, and that the plaintiff, having taken the saltpeter, believing it to be epsom salts, became sick, and suffered great impairment of health. The jury in the case found for the defendants.

One error relied upon is that the verdict reads, "We, the jury, find for the defendants, " whereas it ought to read, "We the jury, find the defendants not guilty." The argument is that, as the plea was, "Not guilty, " the verdict should have responded to the issue. Plainly, there can be nothing in this point. The verdict does meet the issue. How could the jury find for the defendants, if they did not find them not guilty? It, in effect, says they found the issue for the defendants, thus responding to it Many verdicts are in this form, and are always regarded as good, —just as good as the other form. Verdicts are to be favorably construed, and, if the point in issue is substantially decided by the verdict, it is good; and when the meaning of the jury can be satisfactorily collected from the verdict, upon matters involved in the issue, it ought not to be set aside for irregularity or want of form in its wording. Lewis v. Childers, 13 W. Va. 1; Hogg, Pl. & Forms (2d Ed.) 227.

Another objection to the verdict is that the jury was sworn wrong, as the record simply says it was sworn "the truth to speak upon the issue joined, " whereas, as there had been an inquiry of damages at rules, the jury ought to have been sworn to well and truly find the amount, if any, which the plaintiff was entitled to recover. How can such a point as this be colorably made, when there was in court a plea of not guilty, which annulled the rule order for inquiry of damages?

The declaration avers that the plaintiff sent by an unnamed agent to the store of the defendants for epsom salts, and that they wrongfully and negligently sold to the plaintiff, by his agent, saltpeter, which, being taken, sickened and inflicted lasting Injury upon him. The contest in the trial court seems to have been upon the question whether the sale was in fact made to the plaintiff or to McGary. The plaintiff had been sick or indisposed at McGary's house for some three weeks, and wanted salts for medicine, and, as he claims, procured the son of McGary (a boy) to go for him to the store of the defendants for the salts; whereas the defendants claimed that the plaintiff neither sent the boy, nor bought or paid for them, but that Mrs. McGary, being informedthat the salts which they usually kept in the house were exhausted, sent the boy herself to the store, and bought them herself. The circuit court seems to have acted, in its instructions, upon the erroneous theory that if the sale was in fact to McGary, and not to Peters, Peters could not recover. This theory rests upon the reasoning that there was no sale to Peters, no contract, no relation between the plaintiff and defendants, and therefore there was no duty upon the defendants to the plaintiff, the breach of which could give rise to an action. But the law will not sustain this line of reasoning. Can a druggist, from incompetency or negligence, sell to one person the wrong, poisonous article as medicine, which, being taken by such person lying sick in the purchaser's house, inflicts injury upon such third person, without any liability upon that druggist to answer to that third person? The law says he is liable to that third person. We know that drugs and medicines are kept in homes, and may, and probably will, be used by other persons than the one buying. Such is the probable, usual case. Is it possible that there is no reparation to this third person for irreparable harm to him from such incompetency or negligence? Considering the frightful dangers lurking in drugs, poisons, and medicines, this would be a disastrous rule. Is there no duty upon a seller of medicine, as to persons who may use them, beyond the immediate purchaser, simply because there is no contract between the seller and the third person? Where the action is only for the breach of a contract, only the parties to it or their privies, can maintain it Strangers cannot sue for its negligent breach. Bank v. Ward, 100 U. S. 195, 25 L. Ed. 621; 1 Shear. & R. Neg. § 116; 2 Jag. Torts, § 260. But where, in a given transaction, the law puts upon a person the duty to so act that he does not harm others, independent of a contract he is liable to third parties, even though executing a contract made with a particular person, if he harms others by negligence. The question is, has the defendant broken a duty apart from the contract? If he has simply broken his contract none can sue him but a party to it; but, if he violated a duty to others, he is liable to them. The single question in a given case is, was there a duty on the part of the defendant to the person suing him? Whence does duty come? The general rule is that damages only come from what is the natural, reasonable, and probable consequence of an act. If harm may come reasonably and probably to any one from another's action, there is duty on him so to act as to avoid such injury. Now, where a druggist sells medicine to one, is it not probable that it may be taken by others than his immediate vendee; and if the wrong article, and dangerous, is it not probable that others will receive injury? If, under the facts, a common-law duty to third persons exists, a party may be sued by such persons for negligence, Incapacity, or misfeasance in performing his contract with another. This is particularly so in respect to a dangerous thing sold. 2 Jag. Torts, § 261; 1 Shear. & R. Neg. § 116; note Insurance Co. v. Perrine, 57 Am. Dec. 401. "Apothecaries, druggists, and all persons engaged in manufacturing, compounding, or vending drugs, poisons, or medicines, are required to be extraordinarily skillful, and to use the highest degree of care known to practical men to prevent injury from the use of such articles and compounds." Howes v. Rose (Ind. App.) 42 N. E. 303, 55 Am. St. Rep. 251, and note; Craft v. Parker, Webb & Co. (Mich.) 55 N. W. 812, 21 L. R. A. 139; Walton v. Booth, 34 La. Ann. 913, where one sold sulphate of zinc for epsom salts, and was held to a high standard of liability. Such persons are liable for the slightest negligence, and for ignorance and incapacity. They handle things dangerous to human life and health, and must be most alert to avoid mistakes, and they are bound to have adequate skill. 2 Shear. & R. Neg. §§ 689, 690. In Kentucky the rule is that a druggist must know what he sells, and if he departs from the prescription, or ignorantly sells wrong and poisonous or hurtful drugs, he is an absolute guarantor, and cannot plead that he has been extraordinarily careful in general. Fleet v. Hollenkemp, 13 B. Mon. 219, 56 Am. Dec. 563. This excludes the question of negligence or ignorance, as irrelevant and bases the position on the tremendous and imminent danger to the public from the sale of poisons and medicines. It can hardly be said to lay down too rigid a rule, looking to the safety of life; but the authorities generally do admit the question of negligence as material, but they demand the utmost caution and skill above stated. Certainly this duty is demanded as between the parties to the sale, and, upon principles above stated, this duty exists between the seller and third persons also. A few cases will show this. The leading case is Thomas v. Winchester, 6 N. Y. 397, 57 Am. Dec. 455, holding that a manufacturing druggist selling a poisonous drug labeled as...